Rants and musings about things political, philosophical, and religious.

Legal Jujitsu in California (Same Sex Marriage Upheld)

A few hours ago, the California Supreme Court issued its opinion in the consolidated appeal of six cases suing for a statewide declaration of the Constitutionality and legality of same-sex marriage. This coming from a progressive state that already gives the same legal privileges to same-sex partnerships that it does to heterosexual marriages.

The legal opinion(PDF) is saturated with warped interpretations of what a “fundamental right” marriage is, and why it should therefore be extended to all, regardless of sexuality. Page seven declares:

We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.

Admitting that the California Constitution does not enumerate a right to marry, the court relies upon previous judicial decrees to create the right out of thin air:

Although our state Constitution does not contain any explicit reference to a “right to marry,” past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution. (Page 49)

Being that the vote was 4-3 in favor of overturning the state’s same-sex marriage ban (passed through a proposition by that pesky thing called the “will of the people”), not all of the judges concurred with the ruling. Dissenting from the majority, Judge Baxter wrote:

I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference.
…
The majority has violated these principles. It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice. (Page 134)

Judge Corrigan’s dissent likewise contains a refreshing admission of the separation of powers which, if respected and obeyed, requires the court to refrain from striking down the will of the people in this matter:

In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. (Page 154)

Frankly, government should not be allowed to define what marriage is, nor have control over its implementation and management. But regardless of the lack of moral authority, government feels inclined to favor heterosexual marriage to encourage the support and propagation of the family, the basic unit of society. Any voluntary corruption of or deviation from that ideal fosters numerous problems: familial, civil, social, etc. Thus, historically, government has encouraged heterosexual marriage through certain policies, tax breaks, and other methods.

But as society increases in wickedness and people clamor for “equal justice” and “fundamental rights” (terms with which they are obviously confused), easy legal avenues are sought out to overturn the will of the majority and create new rights out of warped interpretations of established laws.

Judge Baxter was right: this court’s ruling is nothing more than legal jujitsu.

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About the Author

Connor Boyack is president of Libertas Institute, a public policy think tank in Utah. He is the author of several books along with hundreds of columns and articles championing individual liberty. Connor's work has been publicly praised by national figures such as Ron Paul, Judge Andrew Napolitano, Tom Woods, and many others.

I have an idea. Why don’t we get rid of the idea of a legal marriage and allow marriage to be a personal or religious commitment. We can give all the same rights and responsibilities as legal marriage now contains and grant them as “civil unions”. That way, you can have your religious marriage, and your civil union. Right now, there are in fact people who have been legally divorced, who have not been granted a “temple divorce”. This recognizes that perhaps there is some wisdom in separating the two.

Brigham Young himself admitted that he was not legally married to all but one of his wives. Anna Eliza Webb Young when divorcing Brigham found out she had no legal claim against Brigham Young’s assets, just as Brigham’s legal counsel had argued.

In Utah, we have a history of separating legal marriage (civil unions if you want to call them that) from religious marriages. To a great extent, that is what the Supreme Court of California was trying to address. And by the way, six out of the seven judges I believe were appointed by Republican Governors.

Glenn Greenwald over at Salon.com has an interesting post on the subject.

Obi Wan’s proposal would be exactly the same in practice as legalizing gay “marriage.” There is overwhelming evidence that children and society benefit most from being raised by a mother and a father. Hence, the state has an interest in providing special treatment to heterosexual marriage.

The slippery slope argument is accurate. We’re already seeing it in Europe and Canada. When gay “marriage” becomes the law of the land, states will soon find that they have no power to restrict polygamy, polyamoury, or any other such “marriage” arrangement. And schools will be forced to include curriculum that advocates these alternative arragements and treats them on the same level as monogamous heterosexual marriage. This is already happening in Massachusetts.

Obi Wan’s idea of getting rid of legal marriage would produce precisely the same results.

Stanley Kurtz has done a lot of research that shows definitively that heterosexual marriage rates drop off, and significant family and social decline occurs when three factors are in place: 1) unmarried heterosexual unions become generally accepted, 2) it becomes common for couples to have more than one child out of wedlock, and 3) gay marriage becomes legally acceptable. It doesn’t matter in which order these things occur.

It will take only two generations of this to completely destroy traditional marriage as a societal norm. No society in history has ever survived such devastation.

I agree with you that homosexual marriage can cause societal problems, but I have trouble rationalizing Constitutionally the comment that “regardless of the lack of moral authority, government feels inclined to favor heterosexual marriage to encourage the support and propagation of the family, the basic unit of society.”

Doesn’t seem like a Constitutional role of government but merely a good thing to do, exactly the sort of thing that government should butt the heck out of, perhaps a bad choice of words given the topic of this post.

Then again, my church favors a constitutional amendment defining marriage as heterosexual in nature so maybe a strict Constitutional interpretation isn’t the way to go in every case.

(Nice image. Looks to me like Jeff Bridges and an overweight Danny Trejo just got hitched.)

Reach, on what basis do you argue that gay marriage will damage children? You start out with an assumption that may or may not be valid. And even if it were true, is it possible that children of a gay couple struggle because of the isolation gays feel in a community that demonizes them? And really, how healthy is heterosexual marriage as an institution anyway.

Maybe more inclusion and more tolerance is what children need to ensure they get the nurturing they need to develop. Perhaps children learning that it is ok to be different rather than face the pressures of excessive conformity is less of a threat to the health of our children.

Let’s face it, gay marriage isn’t a threat to hetero-sexual marriage. It is a threat to the prejudices of those who cling to ancient bronze-age mythologies and to the institutions that cling to those mythologies and profit from them.

Let’s remember, though, that although homosexuality is evil, the most serious sins of Sodom and Gomorrah were not sexual, but that they did not care for the poor and needy. We might not be able to do much about same-sex marriage, but we can do a lot about the other.

Let’s face it, gay marriage isn’t a threat to hetero-sexual marriage. It is a threat to the prejudices of those who cling to ancient bronze-age mythologies and to the institutions that cling to those mythologies and profit from them.

Does not God’s doctrine “cling to” and His work “profit” from the ancient bronze-age institution of hetero-sexual marriage? So then, according to your take, gay marriage is a threat to His work (the exaltation of man). Interesting. I would agree with you.

Perhaps children learning that it is ok to be different…

… and pretty soon nearly everything is ok because there is a whole lot of “different” stuff out there that we need to be tolerant of.

Even if the fight against gay marriage is lost politically, I believe we have an obligation to stand up against it.

For what happens in cultural decline both leaders and followers are really accountable. Historically, of course, it is easy to criticize bad leaders, but we should not give followers a free pass. Otherwise, in their rationalization of their degeneration they may say they were just following orders, while the leader was just ordering followers! However, much more is required of followers in a democratic society wherein individual character matters so much in both leaders and followers.

Perhaps teachings children that it is “ok” to SIN will bring the condemnations of God upon our heads. Homosexual behavior is sin. Whatever urges someone feels, whatever inclinations they have in that direction, it is still a sin to act on them.

We should teach our children to be compassionate and humble (the Lord’s version of “tolerance”), but to teach them that any behavior is ok is in defiance of the Gospel of Jesus Christ.

face the pressures of excessive conformity

The pressure to conform? Well, our modern society and philosophy has taught us that our conscience is merely a social construction – that we feel bad for things we do only because other people disapprove of them. Modern philosophy is teaching us that our conscience is merely “a pressure to conform.”

The Lord has taught us that our conscience is divinely given, and that we sometimes feel bad for some of our actions because they are genuinely wrong. No amount of societal acceptance will change that… although we can sometimes use the opinions of our peers to drug our conscience and make ourselves feel good about it.

Well, I’m very pleased to see the recent decision in California because I believe that all Americans should be treated equally under the law.

I have to say that I like Obi Wan’s suggestion that marriage be made just a religious or personal thing. Get government out of our personal lives; right, anti-government conservatives? Or is marriage some kind of club? Tribal affiliation? Am I getting warmer? colder?

Being that the vote was 4-3 in favor of overturning the state’s same-sex marriage ban (passed through a proposition by that pesky thing called the “will of the people”), not all of the judges concurred with the ruling.

The will of the people is a fine thing, but in this case it’s irrelevant. If forty years ago, the majority of people were against inter-racial marriage, it would not justify banning the practice. Sometimes society moves ahead. If you’re hoping to hold the process back, I hope you have strong fingernails.

Don’t fret. We straight folks can still have all the marriage we want (one per person, more where applicable). Having a few gay people getting married won’t affect your marriage in the slightest. In fact, you should be glad. You know what happens to the frequency of sex after marriage. There could be less gay sex going on than ever before!

If there’s one thing we learn from Christians, it’s that the Christian god has an all-consuming curiosity regarding other people’s sex lives. Hmm. Maybe he did create us in his image.

Reach said: “There is overwhelming evidence that children and society benefit most from being raised by a mother and a father. Hence, the state has an interest in providing special treatment to heterosexual marriage.”

To the first sentence I agree. It doesn’t flow logically to the next, however. While having two parents may be better than one, there is no evidence that those parents need be heterosexual. If you do have said evidence, please share it. What I have read on the matter in fact suggests that kids of homosexual parents do just fine.

Great, Cameron, but where is the evidence? Do you have a link or any studies or books? I am (sincerely) interested.

The info I have (Fatherneed, by Kyle Pruett, M.D. – in which he refers to some studies suggests that: 1-children of gay parents are not more likely to be gay themselves, 2-they may have a more difficult time being judged by their peers, 3-tend to develop a less prejudicial view of the world, 4-gay father place greater emphasis on verbal communication, 5-show more consistency in enforcing limits, 6-respond more reliably to the perceived needs of their children. (Many of these points are from: Bigner, J., & Jacobsen, R.B. (1989). “The Value of Children to Gay and Heterosexual Fathers.”

The point was also made in the book that we have a lot more to study. For any study does not confirm truth, but rather points us in certain directions.

So, as I said, where is your evidence? I would like to read it (again sincerely).

The Alliance for Marriage Foundation today celebrated the efforts of California voters for successfully placing the California Marriage Amendment on the November ballot.

The state constitutional amendment would define marriage as a union “between a man and a woman” if successful, and would overturn the recent California Supreme Court decision legalizing “same-sex” marriage.

So, the showdown is set for five months from now. This will get interesting…

Stanley Kurtz has done a lot of research that shows definitively that heterosexual marriage rates drop off, and significant family and social decline occurs when three factors are in place: 1) unmarried heterosexual unions become generally accepted, 2) it becomes common for couples to have more than one child out of wedlock, and 3) gay marriage becomes legally acceptable. It doesn’t matter in which order these things occur.

I am not sure the studies I have seen do a good job of showing which of these cause the other or if maybe they are caused by some other factor. Saying that all of those things happened in a country does not prove that one of them caused the others. However, my money would be on increased cohabitation being the primary cause of decreased marriage rates. I doubt that gay marriage has any significant impact on the behavior of hetero folks.

Not long ago, I was so convinced I knew the absolute truth about eternity, I would ignore reason and logic when they did not support what I already knew to be true. More recently, I have been inclined to approach many problems from a new perspective. My lack of faith has allowed me to evaluate issues without the prejudices which once clouded my vision. I don’t think I have the answers yet, and have not made up my mind about all the issues (this one included), but I no longer feel compelled to stick to the party line. I feel free to explore and evaluate, knowing that I don’t have a predetermined conclusion that I have to arrive at and support. Maybe gay marriage is the end of the world. I would just like a logical and observable reason to believe that position.

Good for you, Brandon. An evidence-based worldview. That’s quite refreshing around here. Usually they only ask for evidence when you disagree with them. If you agree, no evidence needed, intuition is fine.

Like you, I found that faith obscures vision. It gets you attached to ideas, and then you have to defend them, and then you’re too invested in the idea to change if you need to. And if you think your ideas are from a god, then any contrary evidence must be Satan’s deception. Blecch. Now I love it when someone shows me I’m wrong, as long as they present the facts.

Thanks Daniel,
I am trying to not take anything in life for granted. I believe that if there is a God I will find him in my sincere attempts to find truth. I have no idea what exists for us in the universe beyond this life. I have tried to connect with God but have felt empty. So this is my way of dealing with it. I am determined to keep my heart and mind open to truth. I will not reject things simply because they don’t harmonize with my religious tradition. If they are true, they are true and God will not punish me for believing truth. If they are false, then I will ask God to have mercy on me considering his communication system (prayer?) failed to notify me of its falsehood. I stand ready to hear his voice or “feel” his spirit. But, in the meantime I will trust the mind, intellect and reason he has given me.

Back to the topic at hand, I tried to follow up a little bit on the research of Stanley Kurtz as referenced by Reach Upward (#5). I found it interesting that Kurtz seems to identify Polygamy as being the absolute greatest threat to marriage. Much of his opposition to gay marriage seems to stem from his belief that gay marriage will lead to legalized polygamy and subsequentally, the end of civilization. I therefore find it ironic that LDS are so opposed to gay marriage, when a respected researcher such as Stanley Kurtz believes that Polygamy (the celestial marriage, still enshrined in scripture and practiced spiritually) is a greater threat.

I don’t know if one can call what Kurtz does “research” although I am open to hearing more if anyone has any links etc. to reputable journals in which he has published this research we keep talking about. I am quite interested in it, actually, in research surrounding gay parents. In #14 Cameron claimed to me that there was “evidence” but he has yet to reply.

So, if anyone has any specific links (or just titles) to anything from a journal that Kurtz has published, I would love to see it.

Jeff,
I understand your point about revelation. If someone opposes gay marriage because the church (or God) told them to, I can understand their argument (at least they’re being honest). But, it seems to me that many religious people are seeking to find a rational justification to support their stand against gay marriage (which is actually motivated by religion). I was simply pointing out that while LDS feel they are fighting gay marriage, the other people that are fighting with them are actually fighting polygamy and polyamory as the worst enemies. I do think it is ironic that the LDS fear gay marriage, while the others fighting with them fear polygamy most of all. In other posts I have said I feel the LDS should endorse the policy of government getting out of the business of defining relationships. If LDS want to be polygs, that is their business. If gays want to be married, that is their business. I don’t see any benefit to having government define marriage (gay, straight or poly).

By the way Adam, I was being tongue in cheek about him being an excellent researcher. All I found were articles where he references surveys and other people’s work. I don’t know that he actually does any research himself.

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